Trinity Lutheran Decision and the Future of School Choice

John Taylor, who’s a Professor of Law at West Virginia University, has a very interesting piece on the ramifications of the Supreme Court’s recent decision regarding the case of Trinity Lutheran Church. If you’re not familiar with it, it is a very interesting case, defended by the wonderful organization, the Alliance Defending Freedom. Basically what happened is that this Trinity Lutheran Church runs a preschool and daycare center. It was excluded from a Missouri program that provides grants to purchase rubberized surface material (made of recycled tires) for children’s playgrounds. And so, even though the state did admit that the church was certainly qualified for the program, it denied its application because it’s a church, and the state has nothing to do with funding anything involving a church.

Well, the ADF, the Alliance Defending Freedom, took the case up and brought it all the way to the Supreme Court, on the grounds that this is a clear case of religious discrimination. A playground is a playground; and if that playground qualifies for the grant but then is denied because it happens to be on a so-called ‘religious’ property, then that’s called religious discrimination.

Well, they won. The Supreme Court did rule that this rejection was, in fact, religious discrimination.

But what John Taylor’s piece explores is the case’s impact that he sees as potentially reaching well beyond playgrounds, particularly in relation to one of the hottest issues in education: school choice.

Here’s what he writes: “Where in the past, states have decided for themselves whether religious schools are eligible for school vouchers and scholarship tax credits, the Trinity Lutheran decision likely signals that the Supreme Court will soon require states to include religious private schools in their programs. This would be a huge win for school choice advocates and would complete a revolution in the Supreme Court’s understanding of the law on government funding of religious institutions.”

Now, Taylor notes that the precedent since the 1940s has been what we call a separationist paradigm governing Supreme Court decisions. This paradigm represents a strict and impenetrable wall of separation between church and state. And so the decisions of the court have been rather hostile for several decades toward whatever the court happens to consider to be religion. But legal scholars have noted an intrinsic contradiction to this separationist paradigm, in that insomuch as the role of religion in modern society is determined not by theologians but by lawyers, judges, and politicians, such bureaucrats must by definition engage in various forms of theologizing. Just as one cannot define, say, chemistry without recourse to some form of scientific reasoning, so one cannot define religion apart from religious reasoning. In this sense, any state that maintains the basic conditions for the practice of religion in society is itself inescapably religious. Even in a self-proclaimed secular nation, law and religion are not completely separate; the boundary is porous at best, deceptive at worst. Even John Taylor in his piece, whether he realizes it or not, is employing at least some form or religious reasoning, at the very least, he’s operating with an assumption of what actually constitutes a religion.

And so, this contradiction has begun to work itself out in the opposite direction, towards more of what’s called an accomodationist relationship between church and state, where both are seen as distinct and separate institutions but who function as a partnership in the betterment of society.

And so, since the mid-1980s, I would argue largely because of this inherent contradiction, the Supreme Court has exercised a far more accomodationist orientation towards church and state issues. And this, Taylor argues, explains why seven of the nine justices decided in favor of giving Trinity Lutheran Church its playground grant. For the record, Sotomayor and Ginsburg remained the hard separationsists on this point.

Now,Taylor continues: “Nearly every state has provisions in its constitution that address state support for religion, and many of these provisions (like Missouri’s) are more stringently worded than the federal Establishment Clause. Such a provision is exactly why students in Vermont can’t use state funds to attend religious schools. It’s also, perhaps, why some states have not yet adopted voucher policies: Voucher advocates tend to want religious schools to be eligible, but state constitutions often stand in the way”

So, he then asks, what happens if state constitutional law is more separationist than the Supreme Court’s current reading of the Establishment Clause?

Well, this is what Taylor sees as the ramifications: the notion of separation between church and state in effect transforms into full-blown religious discrimination!!! Did you catch that? Here’s what Taylor writes: “The Trinity Lutheran decision suggests that, at least in the context of general funding programs, the court will now view separation of church and state – a position the court once wholeheartedly embraced – as a kind of religious discrimination.” The separationist paradigm is emphatically not a constitutional amendment – there is no amendment that describes a ‘wall of separation’ between church and state, it doesn’t exist on paper, it exists only in the imaginations of supreme court justices; this separationist paradigm is increasingly being seen by supreme court justices as itself discriminatory. This is an absolutely amazing development.

Now Taylor is very interested in the ramifications of this move by the Supreme Court, which basically pronounced the separationist paradigm as unconstitutional particularly as it applies to school vouchers in education. He writes: “The day after deciding the Trinity Lutheran case, the Supreme Court vacated four lower court decisions in Colorado and New Mexico that allowed the exclusion of religious schools from general aid programs. The state courts had based their rulings on separationist language in their state constitutions, but the Supreme Court asked the states to reexamine those decisions in light of Trinity Lutheran……… The Colorado and New Mexico courts will have the first shot at deciding what Trinity Lutheran means for school choice. In my view, the Trinity Lutheran case signals that the Supreme Court will now generally treat separationist exclusions of religious institutions from government funding as “religious discrimination.” Taylor goes on: “If that is right, we’ll soon have completely flipped the law on government funding of religious schools. Where it had once seemed fairly clear that government money could not be used to support religious instruction at all, it may be only a matter of time before the Supreme Court requires voucher programs to treat religious schools the same as their secular peers.”

Fascinating and exciting stuff. Now, we have been tracking these trends for some time, particularly in relation to the school voucher initiatives led by Education Secretary Betsy DeVos. In the US, welfare and education have been the two main areas of public policy where the wall of separation between church and state, seemingly so impenetrable over the last several decades, has begun most noticeably to collapse. And these developments that we are seeing, where the state is now funding church-based organizations to the tune of hundreds of millions of dollars in faith-based initiatives and school voucher programs, are effectively reversing decades of national policy developments.

Moreover, these kind of developments that have led a number of scholars to argue that we are in fact entering into so called a post-secular age, which in its most basic form involves the return of religion and religious values to the public square. Right? This is going on all over the Western world right now. We have seen this with the advent of Sharia councils in the U.K. that arbitrate between conflicts among Muslims, the resurgence of the Russian Orthodox Church as a major political, moral, and cultural force in the Russian Federation, the revival of imperial Shintoism at the highest levels of the Japanese government, a revitalization of Confucian philosophy among Chinese officials, Hindu nationalism in India, Islam in Turkey, and on and on.

And it is in light of these changes that dogmatic appeals to a strict and contradictory separation between church and state appear increasingly implausible; they just do not make a lot of sense in an increasingly post-secular context. All court decision involving religion by definition involve some form of religious reasoning, and if a judge is allowed his religious reasonings in the public square, why is not a church’s religious reasonings allowed? It is actually very simple and straight forward; you cannot possibly rid the public square from religious forms of reasonings, and to argue that one group’s religious reasonings are not allowed while another group’s religious reasonings are, is a clear case of religious discrimination.

Regardless, I do think that the piece by John Taylor is right on; I do think we are beginning to see this ridiculous wall of separation between church and state collapse. And if so, I think we’re going to see a real reversal of several decades of anti-religious public policy trends and the emergence of a thoroughly post-secular society.